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05/04/93 EDWARD COLBERT v. GEORGETOWN UNIVERSITY

May 4, 1993

EDWARD COLBERT, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SUSAN COLBERT, APPELLANT
v.
GEORGETOWN UNIVERSITY, D/B/A GEORGETOWN UNIVERSITY HOSPITAL, AND THOMAS C. LEE, M.D., APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. Richard A. Levie, Trial Judge)

Before Rogers, Chief Judge, and Terry and Schwelb, Associate Judges. Opinion for the court by Associate Judge Terry. Opinion by Associate Judge Schwelb, Concurring in part and Dissenting in part.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge : This medical malpractice case presents an issue of first impression in the District of Columbia: whether metastatic cancer can be an "injury," the discovery of which by a plaintiff commences the running of the three-year statute of limitations applicable to malpractice actions. The trial court answered this question in the negative, reasoning that Susan Colbert's discovery of her injury occurred long before her ultimate discovery of metastatic cancer. The court consequently ruled that Mrs. Colbert's claim and that of her husband were barred by the statute of limitations and granted the defendants' motion for summary judgment. We hold that the Colberts' assertion that they did not reasonably believe Mrs. Colbert had been "injured" until she finally learned that her cancer had metastasized raises a genuine issue of material fact, precluding summary judgment.

The trial court granted the defendants' motion for summary judgment on the additional ground that the plaintiffs had not established a prima facie case of malpractice. We are satisfied that the defendants' admissions, as set forth in the pleadings, depositions, answers to interrogatories, and affidavits presented by the plaintiffs, establish a prima facie case of malpractice. We therefore reverse the trial court's grant of summary judgment on both grounds and remand the case for trial.

I

In July 1982 Susan Colbert felt a lump in her left breast. She went to see her gynecologist, who referred her to an oncologist, Dr. Stanley Kirson. Although a mammogram revealed no evidence of malignancy, a biopsy on August 9 established that the lump was cancerous. Dr. Kirson urged Mrs. Colbert to have the breast removed by a modified radical mastectomy. Because he was about to go out of town, Dr. Kirson gave her the names of two surgeons at Georgetown University Hospital who could perform the operation.

On August 13 Mrs. Colbert and her husband met with Dr. Thomas Lee, one of the surgeons recommended by Dr. Kirson and a full-time employee of Georgetown Hospital. At that meeting Dr. Lee suggested a lumpectomy as an alternative treatment option. He told the Colberts that a lumpectomy was cosmetically more attractive than a mastectomy, and that studies in Europe had shown that, when coupled with radiation treatments afterwards, it was as effective as a mastectomy at removing cancerous cells from the body. The Colberts agreed to the lumpectomy and scheduled the procedure with Dr. Lee.

On August 19 Dr. Lee performed a lumpectomy on Mrs. Colbert's left breast, and at the same time he removed several of her left axillary lymph nodes. When one of the nodes tested positive for cancerous cells, he set up a program of systemic chemotherapy. Mrs. Colbert began receiving chemotherapy treatments under the direction of Dr. Richard Goldberg on September 7.

A couple of weeks later, Mrs. Colbert felt more lumps in her left breast. She tried at that time to get another appointment with Dr. Lee, but she was unsuccessful, so she brought the lumps to Dr. Goldberg's attention. At first Dr. Goldberg did nothing in response to her concerns, but at her last scheduled chemotherapy session on September 28, Dr. Goldberg asked Dr. Patrick Byrne to examine the lumps in Mrs. Colbert's breast. Dr. Byrne arranged for two biopsies to be performed on October 4 and 5.

When these biopsies disclosed the continued presence of cancer in Mrs. Colbert's left breast, Dr. Lee told her that she needed a mastectomy. Mrs. Colbert then asked Dr. Lee if the delay in performing the mastectomy had caused any increased risk. According to her answer to an interrogatory, Dr. Lee replied that "the delay caused enhanced risk of a very high nature." Dr. Lee performed the mastectomy on Mrs. Colbert's left breast on October 21.

Shortly after the mastectomy, Dr. Lee met with Mr. Colbert. At that meeting, according to Mr. Colbert's deposition, Dr. Lee "said that it took him a long time to do the operation because in his entire career he had never seen so much tumor mass." Dr. Lee also said that Mrs. Colbert's chances of survival had decreased from ninety percent to ten percent, and he admitted to Mr. Colbert that he had done "the wrong operation" in August, i.e., when he performed the lumpectomy instead of the mastectomy recommended by Dr. Kirson. Mr. Colbert also stated in his deposition that Dr. Lee said he "had forgotten" that a lumpectomy was not the proper procedure for a patient with multicentric disease, such as Mrs. Colbert.

The next day Mr. Colbert met with Dr. Philip Schein, the chief of the medical oncology division at Georgetown University Hospital, along with other hospital personnel. Dr. Schein told Mr. Colbert that Mrs. Colbert would need an "aggressive" treatment program, combining radiation with chemotherapy. This was "not the usual" treatment after a mastectomy, he said, but because of the extensive growth of the tumor, it was called for in Mrs. Colbert's case. The treatments began very soon thereafter.

Mr. Colbert testified in his deposition that on October 25, 1982, he was in his wife's hospital room when Dr. Goldberg came in. The doctor told them both that he had examined Mrs. Colbert's liver scan and found that the cancer had spread to her liver. *fn1 He said that Mrs. Colbert should "go home and get affairs in order because [she was] going to die." After more sophisticated tests were run, however, other doctors determined that Dr. Goldberg's reading of the liver scan was in error. There was no liver metastasis, and Dr. Goldberg's Conclusion that Mrs. Colbert was "going to die" was wrong. Dr. Goldberg was then taken off her case.

Mrs. Colbert suffered numerous hardships as a result of the chemotherapy and radiation treatment, including third-degree burns, loss of body function, premature menopause, *fn2 loss of hair, nausea, dizziness, weakness, a cracked bladder and resultant bleeding, blistering, and scars. In addition to these physical problems, Mrs. Colbert became extremely depressed and began seeing a psychiatrist for counseling and treatment.

On March 7, 1983, Mrs. Colbert had a prophylactic mastectomy performed on her right breast. This operation was recommended by the doctors at Georgetown, because they were virtually certain that the cancer would spread to the right breast as a result of what they had found in the left breast. It was performed, however, by Dr. Peter Petrucci at Sibley Memorial Hospital because the Colberts no longer wanted Dr. Lee or anybody else at Georgetown to operate on Mrs. Colbert. In his deposition Mr. Colbert testified that, "based on what the physicians [at Georgetown] told me," he believed the prophylactic mastectomy of the right breast would not have been necessary if a mastectomy of the left breast been performed in August 1982 instead of the lumpectomy.

After the first mastectomy, Dr. Lee and others told the Colberts that they were not sure whether the cancer would recur. Dr. Lee specifically told Mr. Colbert that his wife "may never have a recurrence." Nevertheless, the Colberts received another scare in late 1984 or early 1985, when they were told that the cancer had metastasized to her spine. This proved once again to be a false alarm after further tests revealed no evidence that the cancer had spread. *fn3

In late August 1986 Mrs. Colbert began to experience some pain in her lower back. On August 30 she went to see her regular internist, who sent her to Sibley Hospital to have x-rays taken of her back. When the x-rays revealed some evidence of abnormality, the internist told the Colberts that there was a possibility of metastatic cancer and recommended that Mrs. Colbert see an oncologist for further testing. Additional tests were performed by Dr. Fred Smith, who advised her that her cancer had indeed metastasized to her spine and hip. This occurred on September 2 or 3, 1986. From that time onward Mrs. Colbert received treatment for the cancer in her spine, hip, and elsewhere.

Mr. and Mrs. Colbert filed this medical malpractice action on August 31, 1989. *fn4 After the close of discovery, Dr. Lee and Georgetown University (the defendants) filed two separate motions for summary judgment. One of the motions asserted that the Colberts' claim was barred because it was filed after the expiration of the three-year statute of limitations, D.C. Code § 12-301 (8) (1989). The other motion asserted that the various malpractice allegations must fail because they were not supported by expert testimony. The trial court granted the second motion as to all claims except that involving the defendants' alleged failure to warn the Colberts of the risks involved in the lumpectomy procedure initially performed on Mrs. Colbert. *fn5 That exception was moot, however, because the court also granted the first motion based on the statute of limitations. From the judgment entered for Georgetown and Dr. Lee, the Colberts noted this appeal.

Susan Colbert died on January 4, 1992. Her husband was substituted for her as an appellant in his capacity as the personal representative of her estate. He is also, of course, an appellant in his own right.

II

Summary judgment may be granted by the trial court if there are no genuine issues of material fact for the jury to decide. Super. Ct. Civ. R. 56 (c). "When reviewing a trial court order granting summary judgment, this court makes an independent review of the record." Holland v. Hannan, 456 A.2d 807, 814 (D.C. 1983) (citations omitted). In doing so, we must view the record in the light most favorable to the party opposing the motion and resolve against the moving party any doubts about the existence of a factual dispute. Brown v. General Motors Acceptance Corp., 490 A.2d 1125, 1126 (D.C. 1985) (citing cases).

The trial court ruled that, for statute of limitations purposes, there was no genuine issue of material fact as to the date on which the plaintiffs' cause of action accrued. The court also ruled chat summary judgment was appropriate because the plaintiffs had not presented or proffered any expert testimony, which in the court's view was necessary for them to ...


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